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12941 Venezuela - Treaty on Mutual Legal Assistance in Criminal Matters


   
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TREATIES AND OTHER INTERNATIONAL ACTS SERIES 12941

 

 

MUTUAL LEGAL ASSISTANCE

 

 

 

 

 

Treaty Between the
UNITED STATES OF AMERICA
and VENEZUELA

 

Signed at Caracas October 12, 1997

 

 

 

 


 

 


NOTE BY THE DEPARTMENT OF STATE

Pursuant to Public Law 89—497, approved July 8, 1966
(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued
under the authority of the Secretary of State shall be competent
evidence . . . of the treaties, international agreements other than
treaties, and proclamations by the President of such treaties and
international agreements other than treaties, as the case may be,
therein contained, in all the courts of law and equity and of maritime
jurisdiction, and in all the tribunals and public offices of the
United States, and of the several States, without any further proof
or authentication thereof.”


 

 

 

 


VENEZUELA

Mutual Legal Assistance

Treaty signed at Caracas October 12, 1997;
Transmitted by the President of the United States of America
to the Senate March 27, 1998 (Treaty Doc. 105-38,
105th Congress, 2d Session);
Reported favorably by the Senate Committee on Foreign Relations
October 14, 1998 (Senate Executive Report No. 105-22,
105th Congress, 2d Session);
Advice and consent to ratification by the Senate
October 21, 1998;
Ratified by the President January 20, 1999;
Entered into force March 1, 2004.

 

 

 

 

 

TREATY BETWEEN
THE GOVERNMENT OF THE UNITED STATES OF AMERICA
AND
THE GOVERNMENT OF THE REPUBLIC OF VENEZUELA
ON
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
2
The Government of the United States of America and the
Government of the Republic of Venezuela,
Desiring to improve the effectiveness of the authorities of
both countries in the investigation, prosecution, prevention, and
suppression of crime through cooperation and mutual legal
assistance in criminal matters,
Based on the principle of sovereign equality of States,
Have agreed as follows:
Article I
Scope of Assistance
1. The Parties shall provide mutual assistance, in
accordance with the provisions of this Treaty, in connection with
the investigation, prosecution, and prevention of offenses, and
in proceedings related to criminal matters.
2. Assistance shall include:
(a) taking the testimony or statements of persons;
(b) providing documents, records, files, and articles
of evidence;
(c) locating or identifying persons or items;
(d) serving documents;
(e) transferring persons in custody or subject to
criminal proceedings for testimony or other
purposes;
(f) executing requests for• searches and seizures;
(g) execution of procedures involving experts;
(h) assisting in proceedings related to immobilization
and forfeiture of assets; restitution; collection
of fines; and
(i) any other form of assistance appropriate under the
laws of the Requested State.
3. Assistance shall be provided without regard to whether
the conduct that is the subject of the investigation,
prosecution, or proceeding in the Requesting State would
constitute an offense under the laws of the Requested State.
However, assistance or cooperation in connection with
searches, seizures, and forfeitures shall only be provided if
the Central Authority of the Requested State determines that the
act to which the request relates in the Requesting State is also
punishable as an offense under the laws of the Requested State.
4. This Treaty is intended solely for mutual legal
assistance between the Parties for the purpose of investigations
or prosecutions of acts punishable in the Requesting State, the
prevention of such acts, or proceedings related to criminal
matters ancillary to such acts. The provisions of this Treaty
shall not give rise to a right on the part of any private person
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to obtain, suppress, or exclude any evidence, or to impede the
execution of a request for assistance.
Article II
Central Authorities
1. Each Party shall designate a Central Authority to make
and receive requests pursuant to this Treaty.
2. For the United States of America, the Central Authority
shall be the Attorney General or a person designated by the
Attorney General. For the Republic of Venezuela, the Central
Authority shall be the Attorney General of the Republic.
3. The Central Authority of the Requested State shall
process a request directly, unless it is appropriate to transmit
such request to other competent authorities for purposes of its
execution. Requests shall be executed promptly by the
authorities of the Requested State.
4. The Central Authorities shall communicate directly with
one another for the purposes of this Treaty.
Article III
Limitations on Assistance
1. The Central Authority of the Requested State may deny
assistance if:
(a) the request relates to a political offense;
(b) the request relates to a military offense, unless
the offense also constitutes an offense under
ordinary criminal law:
(c) the execution of the request would prejudice the
public order (ordre public). security, or similar
essential interests of the Requested State; or
(d) the request is not made in conformity with the
provisions of this Treaty.
2. Before denying assistance pursuant to this Article, the
Central Authority of the Requested State shall consult with the
Central Authority of the Requesting State to determine whether
assistance can be given subject to such conditions as the Central
Authority of the Requested State deems necessary. If the
Requesting State accepts assistance subject to these conditions,
it shall comply with the conditions.
3. If the Central Authority of the Requested State denies
assistance, it shall inform the Central Authority of the
Requesting State of the reasons for the denial.
Article IV
Form and Contents of Requests
1. A request for assistance shall be in writing. However,
in urgent situations the Central Authority of the Requested State
may accept a request in another form, in accordance with its
domestic laws. If the request is not in writing, it shall be
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presented in writing within ten days thereafter. The request
shall be accompanied by a translation in the language of the
Requested State.
2. The request shall include the following:
(a) the name of the authority conducting the
investigation, prosecution, or proceeding to which
the request relates;
(b) a description of the subject matter and nature of
the investigation, prosecution, or proceeding,
including the specific criminal offenses that
relate to the matter;
(c) a description of the evidence. information, or
other, assistance sought, as well as any
information necessary to facilitate the execution
of the request; and
(d) a statement of the purpose for which the evidence,
information, or other assistance is sought.
3. To the extent necessary and possible, a request shall
also include:
(a) information on the identity and location of any
person from whom evidence is sought;
(b) information on the identity and location of a
person to be served, that person's relationship to
the proceedings, and the manner in which service
is to be made;
(c) information on the identity and whereabouts of a
person to be located;
(d) a precise description of the place or person to be
searched and of the articles to be seized,
forfeited, or otherwise restrained;
(e) a description of the manner in which any testimony
or statement is to be taken and recorded;
(f) a list of questions to be asked of a witness.
which may be reviewed by the Requested State to
determine whether they conform to the requirements
of its domestic law;
(g) a description of any particular procedure to be
followed in executing the request;
(h) information as to the allowances and expenses to
which a person asked to appear in the Requesting
State will be entitled: and
(i) any other information that may be brought to the
attention of the Requested State to facilitate its
execution of the request.
Article V
Execution of Requests
1. The competent authorities of the Requested State shall
do everything in their power to execute the request. The Courts
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of the Requested State shall have authority to issue subpoenas,
search warrants, or other orders necessary to execute the
request.
2. The Central Authority of the Requested State shall make
all necessary arrangements for and meet the costs of the
representation in the Requested State of the Requesting State in
any proceedings arising out of a request for assistance.
3. Requests shall be executed in accordance with the laws
of the Requested State except to the extent that this Treaty
provides otherwise. However, the method of execution specified
in the request shall be followed except insofar as it is
prohibited by the laws of the Requested State.
4. If the Central Authority of the Requested State
determines that execution of a request would interfere with an
ongoing criminal investigation, prosecution, or proceeding in
that State, it may postpone execution, or make execution subject
to conditions determined to be necessary after consultations with
the Central Authority of the Requesting State. If the Requesting
State accepts the assistance subject to the conditions, it shall
comply with the conditions.
5. The Requested State shall use its best efforts to keep
confidential a request and its contents if such confidentiality
is requested by the Central Authority of the Requesting State.
If the request cannot be executed without breaching such
confidentiality, the Central Authority of the Requested State
shall so inform the Central Authority of the Requesting State,
which shall then determine whether the request should
nevertheless be executed.
6. The Central Authority of the Requested State shall
promptly inform the Central Authority of the Requesting State of
the outcome of the execution of the request. If the request is
denied, or if its execution is delayed or postponed, the Central
Authority of the Requested State shall inform the Central
Authority of the Requesting State of the reasons for such denial,
delay, or postponement.
Article VI
Costs
The Requested State shall pay all costs relating to the
execution of the request, except for the fees of expert
witnesses, the costs of translation, interpretation, and
transcription, and the allowances and expenses related to travel
of persons pursuant to Articles 10 and 11, which shall be paid by
the Requesting State.
In cases in which extraordinary expenses arise, the Central
Authorities shall consult with one another to establish the terms
and conditions under which the assistance may be provided.
Article VII
Limitations on Use
1. The Central Authority of the Requested State may
request that the Requesting State not use any information or
evidence obtained under this Treaty in any investigation,
prosecution, or proceeding other than that described in the
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request without the prior consent of the Central Authority of the
Requested State. The Requesting State shall take all possible
legal measures to comply with the provisions of this paragraph.
2. The Central Authority of the Requested State may
request that information or evidence furnished under this Treaty
be kept confidential or be used only subject to terms and
conditions it may specify. If the Requesting State accepts the
information or evidence subject to such conditions, it shall take
all possible legal measures to comply with the conditions.
3. Information or evidence that has been made public in
the Requesting State consistent with paragraph 1 or 2 may
thereafter be used for any purpose.
Article VIII
Testimony and Evidence in the Requested State
1. Upon request by the Requesting State, a person in the
Requested State from whom testimony or evidence is requested
pursuant to this Treaty shall be summoned and, if necessary,
compelled, to appear and testify or produce items, including
documents, records, and articles of evidence.
2. Upon request, the Central Authority of the Requested
State shall furnish information in advance about the date and
place of the taking of the testimony or production of the
evidence pursuant to this Article.
3. Unless prohibited from doing so by its domestic law,
the Requested State shall permit the presence of such persons as
specified in the request during the execution of the request, and
shall allow such persons to question the person giving the
testimony or evidence.
4. If the person referred to in paragraph 1 asserts a
claim of immunity, incapacity, or privilege under the laws of the
Requesting State, the testimony or evidence shall nonetheless be
taken and the claim made known to the Central Authority of the
Requesting State for resolution by the authorities of that State.
Article IX
Records of Government Agencies
1. Upon request, the Requested State shall provide the
Requesting State with copies of publicly available records,
including documents or information in any form, in the possession
of government departments and agencies in the Requested State.
2. The Requested State may provide copies of any documents
or information that are in the possession of a government
department or agency in that State, but which are not publicly
available, to the same extent and under the same conditions as
such copies would be available to its own law enforcement,
administrative, or judicial authorities. The Requested State may
in its discretion deny a request pursuant to this paragraph
entirely or in part.
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Article X
Testimony and Evidence in the Requesting State
1. When the Requesting State requests the appearance of a
person in that State for testimony or other purposes, the
Requested State shall invite the person to appear before the
appropriate authority in the Requesting State. The Requesting
State shall indicate the extent to which the expenses related to
the travel of such person will be paid. The Central Authority
of the Requested State shall promptly inform the Central
Authority of the Requesting State of the response of the person.
2. Upon request by the person invited to appear. the
Requesting State may consider providing security guarantees for
that person during the period that his or her presence is
required in that State.
3. The Central Authority of the Requesting State may
determine that a person appearing in the Requesting State
pursuant to this Article shall not be subject to service of
process, or be detained or subjected to any restriction of
personal liberty, by reason of any acts or convictions that
preceded his departure from the Requested State.
4. A person who appears in the Requesting State for the
purposes contemplated in this Article may not be required by that
State to give statements or testify in proceedings other than
those specified in the request. unless the person consents in
writing and the Central Authorities of both States agree.
5. The safe conduct provided for by this Article shall
cease ten days after the Central Authority of the Requesting
State has notified the Central Authority of the Requested State
that the person's presence is no longer required, or when the
person, having left the territory of the Requesting State,
voluntarily returns.
Article XI
Transfer of Persons in Custody or
Subject to Criminal Proceedings
1. A person in the custody of, or subject to criminal
proceedings in, the Requested State whose presence in the
Requesting State is sought for purposes of assistance under this
Treaty shall be transferred from the Requested State to the
Requesting State for that purpose if the person consents in
writing and if the Central Authorities of both States agree.
2. A person in the custody of, or subject to criminal
proceedings in. the Requesting State whose presence in the
Requested State is sought for purposes of assistance under this
Treaty may be transferred from the Requesting State to the
Requested State if the person consents in writing and if the
Central Authorities of both States agree.
3. For purposes of this Article:
(a) the receiving State shall have the authority and
the obligation to keep the person transferred in
custody unless otherwise authorized by the sending
State;
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(b) the receiving State shall return the person
transferred to the custody of the sending State as
soon as such person's presence is no longer
required for the purposes set forth in the
request, or as otherwise agreed by both Central
Authorities;
(c) the receiving State shall not require the sending
State to initiate extradition proceedings for the
return of the person transferred; and
(d) the person transferred shall receive credit for
service of the sentence imposed in the sending
State for time served in the custody of the
receiving State.
Article XII
Location or Identification of Persons or Items
The Requested State shall take all necessary measures to
ascertain the location or identity of persons or items specified
in the request.
Article XIII
Service of Documents
1. The Requested State shall take all necessary measures
to effect service of any document relating, in whole or in part,
to any request for assistance made by the Requesting State under
the provisions of this Treaty.
2. The Requesting State shall transmit any request for the
service of a document requiring the appearance of a person before
an authority in the Requesting State a reasonable time before the
scheduled appearance.
3. The Requested State shall return a proof of service in
the manner specified in the Request.
Article XIV
Search and Seizure
1. The Requested State shall execute a request for the
search, seizure, and delivery of any item to the Requesting State
if the request includes the information justifying such action
under the laws of the Requested State.
2. The Central Authority of the Requested State may
require that the Requesting State agree to the terms and
conditions deemed to be necessary to protect third party
interests in the item to be transferred.
Article XV
Return of Items
The Central Authority of the Requested State may require
that the Central Authority of the Requesting State return as soon
9
as possible any items, including documents, records. or articles
of evidence, furnished to it in execution of a request under this
Treaty.
Article XVI
Assistance in Forfeiture Proceedings
The Central Authority of either Party may notify that
of the other when it has reason to believe that proceeds, fruits
or instrumentalities of crime are located in the territory of the
other Party.
2. The Parties shall assist each other, to the extent
permitted by their respective laws, in procedures relating to the
immobilization, securing and forfeiture of the proceeds, fruits
and instrumentalities of crime, restitution, and collection of
fines.
3. The Party that has custody over proceeds, fruits, or
instrumentalities of offenses shall dispose of them in accordance
with its laws. To the extent permitted by its laws and upon such
terms as it deems appropriate, either Party may transfer all or
part of such assets, or the proceeds of their sale, to the other
Party.
Article XVII
Authentication and Certification
1. Notwithstanding any authentication or certification
necessary under its law, the Requested State shall authenticate
any document, record, or copy thereof, or provide a certification
regarding any article, in the manner requested by the Requesting
State, if this is not incompatible with the laws of the Requested
State.
2. For the purpose of facilitating the use of the special
authentications or certifications mentioned above, the Requesting
State shall enclose in the request the appropriate forms or
describe the particular procedure to be followed.
Article XVIII
Compatibility with Other Treaties
Assistance and procedures set forth in this Treaty shall not
prevent either Party from granting assistance to the other Party
through the provisions of other international agreements to which
they are parties. The Parties may also provide assistance to
each other pursuant to any bilateral arrangement, agreement, or
practice that may be applicable. consistent with their respective
domestic laws.
Article XIX
Consultation
The Central Authorities of the Parties shall consult, at
times mutually agreed to by them, to promote the most effective
use of this Treaty. The Central Authorities may also agree on
such practical measures as may be necessary to facilitate the
implementation of this Treaty.
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Article XX
Entry Into Force. Duration. and Termination
1. This Treaty shall enter into force upon written
notification between the Parties, through diplomatic channels, of
compliance with their respective legal requirements necessary for
its approval. The Treaty shall have indefinite duration.
2. This Treaty shall apply to any request presented after
the date of its entry into force, even if the relevant acts or
omissions occurred prior to that date.
3. Either Party may terminate this Treaty at any time by
means of written notice, through diplomatic channels, to the
other Party. Termination shall take effect six months following
the date of notification. Requests for assistance that may be
pending at the time of termination of the Treaty may be executed
if agreed by both Parties.
IN WITNESS WHEREOF, the undersigned, have signed this
Treaty.
DONE at Caracas, in duplicate, in the English and Spanish
languages, this 12th day of October. 1997, both texts being
equally authentic.
FOR THE GOVERNMENT OF THE FOR THE GOVERNMENT OF THE
UNITED STATES OF AMERICA REPUBLIC OF VENEZUELA
Madeleine K. Albright Miguel Angel Burelli Rivas
Secretary of State Minister of Foreign Affairs



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